Sabatino v. Steptoe & Johnson, PLLC

Petitioner
Coleen D. Sabatino, pro se, appeals the July 18, 2016, order
of the Circuit Court of Kanawha County affirming a July 27,
2015, order of the Board of Review of Workforce West Virginia
that disqualified petitioner from receiving unemployment
benefits. Respondent Steptoe & Johnson, PLLC, by counsel
Larry J. Rector, filed a response in support of the circuit
court's order. Petitioner filed a reply.

The
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the circuit court's order is appropriate under
Rule 21 of the Rules of Appellate Procedure.

Petitioner
worked as a legal secretary for respondent, a law firm, in
its Bridgeport, West Virginia, office from December 1, 2014,
until March 18, 2015. From her first day of employment,
petitioner was dissatisfied with her treatment by respondent.
Petitioner states that her orientation was deficient in that
respondent's office manager failed to give her a tour of
the office, failed to tell her where the restroom was, and
failed to show her the location of the offices of the
attorney and the paralegal for whom she would be working.

Petitioner
also complains that respondent placed her on a performance
improvement plan ("PIP") for insufficient
justification in February of 2015.[1] Shortly thereafter,
petitioner was hospitalized for an illness from February 17,
2015, to February 20, 2015. [2] Following her hospitalization,
work restrictions required petitioner to be placed on light
duty and her work release noted that she "may be
abnormally fatigued for up to three weeks related to [her]
current condition." Respondent believed that
petitioner's position was already light duty; however,
respondent extended petitioner's PIP twice "in
fairness to [her]" given the time petitioner missed
because of her hospitalization.

Finally,
petitioner alleges that the paralegal for whom she worked did
not cooperate in helping to get petitioner's work done
and that the coworkers with whom she shared an office were a
distraction to her because they did not concentrate on their
jobs and disseminated "falsehoods and sophomoric
details" about her to the office manager. Consequently,
by letter dated March 15, 2015, petitioner requested a
reassignment to another paralegal and to be moved to another
office space. Respondent denied petitioner's requests by
letter dated March 17, 2015. Respondent first stated that
petitioner's assigned paralegal behaved professionally
toward petitioner and gave petitioner "every benefit of
doubt" when asked about the quality of petitioner's
work. Respondent concluded that petitioner needed to
communicate better with the paralegal instead of being
assigned to another paralegal. With regard to the behavior of
respondent's coworkers, respondent found that she did not
raise that issue until her March 15, 2015, letter and that
"[a]ll secretaries in the office work in the same
environment" as petitioner. However, for reasons
apparently not related to this case, respondent relocated one
coworker petitioner complained of to another office.

Respondent's
March 17, 2015, letter also extended petitioner's PIP
until March 27, 2015, "at which time a decision will be
made about [petitioner's] future employment with
[respondent]." The following day, March 18, 2015,
petitioner cleaned out her desk and left a letter on her
desk, stating that she was resigning from her position
"effective immediately."

Petitioner
applied for unemployment benefits on April 20, 2015, stating
that she quit her job because she felt that "[she] was
going to be fired" and did not want the termination to
show on her employment history. Petitioner stated that she
attempted to "resolve the situation" with her job
difficulties and to do her job to the best of her ability.
Though petitioner admitted to absenteeism, she attributed it
"to health reasons beyond [her] control."
Petitioner further stated that she was "able,
available[, ] and seeking full-time work." By a decision
dated April 29, 2015, a deputy commissioner of Workforce West
Virginia denied petitioner's application for benefits on
the ground that she quit work voluntarily without good cause
involving fault on the part of respondent.

Petitioner
appealed the deputy commissioner's decision, and an
administrative hearing was held on May 29, 2015. The
administrative law judge ("ALJ") admitted
petitioner's April 20, 2015, statement; an April 22,
2015, request for separation information filled out by
respondent; and the deputy commissioner's April 29, 2015,
decision as exhibits. Petitioner requested the admission into
evidence of the work release completed by a physician's
assistant following her hospitalization, which the ALJ
granted. Respondent sought the admission of (1) the March 15,
2015, letter, in which petitioner requested a reassignment to
another paralegal and to be moved to another office; (2) the
March 17, 2015, letter, in which respondent denied those
requests; (3) the March 18, 2015, letter in which petitioner
resigned "effective immediately"; (4) a March 23,
2015, letter from petitioner to respondent, in which she took
issue with the statements contained in respondent's March
17, 2015, letter; and (5) a timeline of petitioner's
employment prepared by respondent. The ALJ admitted both the
letters and the timeline.[3]

In
addition to the documentary evidence, petitioner and
respondent's director of employee relations testified at
the May 29, 2015 hearing. At the beginning of her testimony,
petitioner appeared hesitant and also noted that the hearing
had been scheduled only for thirty minutes. The ALJ advised
petitioner that, regardless of how long the hearing was
scheduled to last, he would "take as much time as
necessary for [her] to have a full, fair hearing."
Thereafter, the ALJ repeatedly asked petitioner whether she
felt limited in how long she had to testify. During one of
those exchanges, the ALJ reassured petitioner that he wanted
her to tell him everything that she felt was important for
him "to make a fair decision regardless of how long it
[took her]." Also, following the admission of the
timeline of petitioner's employment prepared by
respondent, the ALJ allowed petitioner to testify as to what
she felt were inaccuracies in that exhibit.

During
petitioner's testimony, she confirmed that (1) from the
day she started working for respondent, she "felt that
[she] was not given a fair shot"; (2) respondent granted
two extensions of her PIP because of her hospitalization; and
(3) she and her coworkers had a lot of "personal
conflict." The ALJ asked petitioner whether she felt
that she resigned or was terminated. Petitioner answered,
"I quit." The ALJ inquired whether petitioner quit
"voluntarily." Petitioner responded, "I
did." However, petitioner further testified that, if she
did not quit her job, she believed that respondent would have
fired her. Consequently, the ALJ asked petitioner whether
"any supervisor or manager [told her that she was] going
to be discharged." Petitioner stated that no one told
her that she was going to be terminated, but that she was
left with the impression that respondent wanted to fire her.
However, petitioner admitted that the last extension of her
PIP occurred on March 17, 2015, the day before she quit.

Respondent's
employee relations director testified that, because
petitioner worked for only one attorney (who also had a legal
secretary at his other office) and one paralegal, she had a
light workload in comparison to other legal secretaries
employed by respondent. The employee relations director
further testified that petitioner's PIP addressed issues
of performance, organization, and attendance. However, the
ALJ limited the testimony of the employee relations director
regarding petitioner's level of compliance with her PIP
because the parties agreed that petitioner voluntarily quit
her job (instead of being terminated by respondent) and
because petitioner never testified that the issues that she
had with respondent and her coworkers involved discrimination
against her based on status such as gender or
age.[4]

In a
decision dated June 1, 2015, the ALJ noted petitioner's
personal problems with her coworkers and her assigned
paralegal, and the statement contained in her work release
stating that, following her hospitalization, she could become
"abnormally fatigued." The ALJ specifically
addressed petitioner's health by finding that, if she
felt "abnormally fatigued" or overwhelmed, she
never raised that concern with respondent. The ALJ further
found that petitioner had a light workload for a legal
secretary because petitioner worked for only one attorney
(who also had a legal secretary at his other office) and one
paralegal. With regard to petitioner's contention that
she quit her job in anticipation of being terminated, the ALJ
found that "the evidence supports a finding that
[respondent] did not desire to discharge [petitioner]"
because respondent extended petitioner's PIP "on two
separate occasions." Accordingly, the ALJ concluded that
petitioner was disqualified from receiving unemployment
benefits, pursuant to West Virginia Code § 21A-6-3(1)
because she quit work voluntarily, without good cause
involving fault on the part of respondent, by "[leaving]
a written resignation on her desk on March 18, 2015."

Petitioner
appealed the ALJ's June 1, 2015, decision to the Board of
Review of Workforce West Virginia ("Board"). On
June 21, 2015, petitioner filed a motion with the Board
requesting a remand for an additional hearing with a
different ALJ because she was "cut off" at the May
29, 2015, hearing before she could present necessary
evidence. By order entered on July 27, 2015, the Board
adopted the ALJ's decision in its entirety and denied
petitioner's motion because she failed to show good cause
for a remand. Petitioner appealed that order to the Circuit
Court of Kanawha County, which affirmed the Board's
decision by order entered on July 18, 2016. The circuit court
determined that the ALJ properly found that petitioner quit
her job voluntarily without good cause involving fault on the
part of respondent and that the Board properly denied
petitioner's request for a remand ...

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